under the contract, or otherwise paid by the contractor to the Company. PRECEDENT XXIX. CONTRACT SIMPLE) FOR MAKING A 16. Engineer number of men, horses, engines, may fix the &c., to be em ployed from time to time by contractor; 13. The engineer for the time being may require the contractor to provide at all times such number and quantity of efficient workmen, agents, horses, engines, buildings, huts, machinery power, and plant of every kind, as he thinks expedient for the expeditious and satisfactory progress of the works, and for such period and in such places as he may deem requisite, and if upon written notice thereof to the contractor such requisition be not complied with, the Company may, at the cost and expense of the contractor, provide and pay for the requisite workmen, agency, horses, engines, buildings, huts, machinery power, and plant, and retain or deduct the costs and expenses incurred thereby out of any moneys due or to become due to the contractor, who shall otherwise also be liable for the amount thereof, and the Company shall also and use his be at liberty to use, in advancing the works, the horses, plant, &c. engines, implements, buildings, huts, machinery power, and plant provided by the contractor. and on failure by contractor, may employ them at his expense; shall not execute tion, or shall rupt, Company contract. may determine 14. In case the contractor shall not continue to execute 17. If contractor and advance the works to the satisfaction of the engineer works to engifor the time being of the Company, or his deputy, or shall neer's satisfacdelay the same from any other cause than the default of become bankthe Company, and continue such default seven days or more after notice in writing thereof given to him under the hand of the engineer or secretary of the Company, or if before the completion of the contract the contractor shall become bankrupt, then and in any of these cases the Company may, if they think fit (and without prejudice and in addition to any other remedy they may have in the premises) determine this contract, and in that case all moneys then due to the contractor, and all penalties and sums for non-fulfilment of contract, and all materials, horses, engines, buildings, huts, tools, implements, and plant provided by the contractor shall be forfeited to and become the property of the Company. 15. In case of terms repeated wholly or partially in the contract and the specification, or any of them, the Com 18. Repetitions and variations in terms of con PRECEDENT CONTRACT (SIMPLE) FOR MAKING A RAILWAY. pany may adopt both or either of the provisions, so as to secure in all cases the most ample protection. 16. Whenever any work, materials, labour, agency, tools, machinery, plant, or thing whatever is in this contract, or in the specification or drawing named or implied tract and speci- to be done, executed, or provided, it shall, in all cases (unless herein or in such specification expressly stated to be done or provided at the cost of the Company) be deemed and taken that the same shall be entirely done 19. Everything and provided at the cost and expense of the con fication to be construed most favourably to Company. not otherwise provided for, to be at contrac tor's expense. 20. Represen tatives to be bound by, and have benefit of contract. tractor. 17. The term "the Company," whenever used, shall include the assigns of the Company, and the term "contractor," when herein used, shall extend to his executors and administrators, unless otherwise inconsistent with the provisions of the contract; but the contractor shall not assign [or sub-let] the contract without the licence of the without consent. Company, to be signified by some minute of the directors, verified by the hands of two directors and the secretary. Contractor not to assign or sub-let contract 21. Errors in specifications to be corrected and executed at scheduled prices. 22. Arbitration clause. 18. Any work which may have been incorrectly described in kind, quality, and contents, in the detailed estimate of the said works furnished by the Company to the contractor, and accompanying the contract, shall be done and executed by the contractor, and the charges in respect of the same shall be added to or deducted (as the case may require) from the contractor's bill, according to the said schedule of prices. 19. All disputes and differences as to the true intent and meaning of the contract and specifications, drawings, detailed estimate or schedule of prices, or any of them, or any part thereof respectively, or relating to the works and materials, or the kind and quality thereof, or to the rate of progress, regularity, and efficiency of the works or workmen, or as to any thing contained in this contract, or in the specifications, drawings, detailed estimate, or schedule of prices, or any diminutions, additions, or alterations of works or matters therein named, provided for, or referred to, or as to any alterations or incorrect descrip tion of work, or contents, which may be considered to place the contractor at greater inconvenience or cost, or as to the proper maintenance of the works, or as to any interim or final settlement of accounts, or as to any other matter connected with this agreement, the general or special specification, drawings, detailed estimate, or schedule of prices, or any of them, the same shall be referred to, civil engineer, or, in case of his death, to the principal engineer for the time being of the Company, notwithstanding the fact that he be the engineer of, and a shareholder in the Company, and in such reference the said arbitrator shall have the like power as if he had been appointed sole arbitrator or umpire under the provisions of the Railway Clauses Consolidation Act, 1845, and may also make his award by certificate or otherwise, interim from time to time, or final (any rule or decision of law or equity to the contrary notwithstanding), which award, certificate, or decision shall be binding and conclusive, and the submission hereby made shall be at the instance of either party made a rule of Her Majesty's Court of. IN WITNESS, &c. (supra, p. 147.) Add SCHEDULES and annex SPECIFICATIONS. PRECEDENT XXIX. CONTRACT (SIMPLE) FOR MAKING A RAILWAY. PRECEDENT CONTRACT FOR MAKING A RAILWAY (STRINGENT). 1. Parties. 2. Recites tender by contractors to execute works at scheduled prices, and acceptance of tender. Obtaining engineer's certificate may be made a condition precedent to contractor's right to pay. ment. Arbitration clauses excluding jurisdiction of courts. XXX. AGREEMENT under seal between a RAILWAY COMPANY and a FIRM of CONTRACTORS for MAKING a RAILWAY, with STRINGENT PROVISIONS for securing the performance of the contract to the SATISFACTION of the COMPANY'S ENGINEER, and making the OBTAINING his CERTIFICATE a CONDITION PRECEDENT to the Contractor's right to RECOVER any payment (a). THIS AGREEMENT, made, &c., between A. B., C. D., and E. F., all of, &c., carrying on the business of a contractor for public works in copartnership under the firm of A. B. and Co. of the one part, and the Railway Company of the other part: WHEREAS the said Company advertised for tenders for the execution of the works mentioned and referred to in the first schedule hereto, according to the specifications and plans relating to the same hereto annexed, and to the provisions of this agreement, and the said A. B., C. D., and E. F., sent in to the Company their tender for the execution of the said works according to the said specifications, plans, and (a) The clauses in the text are substantially the same as the similar clauses in the contract, the subject of dispute in Scott v. Corporation of Liverpool, 1 Giff. 216; 3 D. G. & J. 334; and having stood the test of litigation may be relied on as making the contractor's right to payment conditional on their obtaining the engineer's certificate, and as constituting the engineer the sole judge in all questions arising between the contractors and the company: see Westwood v. Secretary of State for India, 1 N. R. 262. The validity of such stipulations has been disputed in courts of law and equity on the ground that they attempt to oust the jurisdiction of the superior Courts: Horton v. Sayers, 4 H. & N. 643, and cases there cited; but the judgment of the House of Lords in Scott v. Avery, 5 H. L. Ca. 812, is an authority for holding, at any rate, that an agreement to refer a question of amount, and to exclude the jurisdiction of the ordinary tribunals till an award has been made, is valid. PRECEDENT CONTRACT FOR MAKING A RAILWAY (STRINGENT). 3. Witnesses mutual agreement and cove agreement, at or for the several prices and sums of money Railway Company and their assigns, And the said Railway Company, so far as the said stipulations, provisions, matters, and things are to be performed, observed, executed, or done by the said Company, do hereby for themselves and their assigns, covenant with the said A. B., C. D., and E. F., their executors and administrators, and separately with each of them, his executors and administrators, in manner following, that is to say: 1. The said A. B., C. D., and E. E. (hereinafter referred to as the contractors), shall well, substantially, and in a workmanlike manner with the best materials of their respective kinds, and to the satisfaction of the engineer for the time being of the said Company, make, execute, and complete in every respect, and deliver up to the Company the several works mentioned or referred to in the first schedule hereto, according to the plans and specifications relating to the same, and subject to the provisions of the said specifications and of this agreement, with such additions to enlargements and alterations of and deviations from the same works and specifications (if any) as the engineer for the time being of the Company may from time to time during the progress of the works direct in writing, and the Company will pay to the con Contractors to execute works, |